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FOURTH DIVISION
FILED: 06/27/02

No. 1-01-3403

PRESIDING JUSTICE HOFFMAN delivered the opinion of thecourt:

On September 22, 1980, the defendant, Brad Lieberman, wasfound guilty of the offense of rape (Ill. Rev. Stat. 1979, ch. 38,par. 11-1(a)). At that time, rape was a Class X felony (Ill. Rev.Stat. 1979, ch. 38, par. 11-1(c)), the penalty for which was adeterminate sentence of imprisonment of not less than 6 years andnot more than 30 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(3)). However, a defendant found guilty of a Class X felonywas eligible for an extended-term sentence of not less than 30years' imprisonment and not more than 60 years if the court foundeither that: (1) the defendant was convicted in Illinois of thesame or greater class felony, within the previous 10 years, andsuch charges were separately brought and tried and arose out of adifferent series of acts; or (2) the offense was accompanied byexceptionally brutal or heinous behavior indicative of wantoncruelty. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a)(2), 1005-5-3.2(b).

On October 3, 1980, prior to sentencing in the instant case,the defendant was found guilty of rape, robbery and intimidation ina case pending in the circuit court of Lake County (hereinafterreferred to as the "Lake County Case"). On October 14, 1980, priorto sentencing in the Lake County Case, the defendant was sentencedin this case to an extended term of 50 years in prison. At thetime of sentencing, the court cited the finding of guilty in theLake County Case as the basis for the imposition of an extended-term sentence. The defendant appealed.

In an opinion issued on June 29, 1982, this court vacated thedefendant's extended-term sentence and remanded the matter for anew sentencing hearing. People v. Lieberman, 107 Ill. App. 3d 949,438 N.E.2d 516 (1982). In so doing, we reasoned that, because asentence had not yet been imposed in the Lake County Case, thedefendant did not have a "conviction" in that case. Lieberman, 107Ill. App. 3d at 959. Noting the absence of facts supporting afinding of exceptionally brutal or heinous behavior indicative ofwanton cruelty, the only other factor which could have formed thebasis for the imposition of an extended-term sentence (see Ill.Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)), we held that no basisexisted for the defendant's 50-year extended-term sentence. Lieberman, 107 Ill. App. 3d at 959.

When this case came before the circuit court for resentencingon January 6, 1983, the State introduced a certified copy of thedefendant's conviction in the Lake County Case which reflected thathe had, by that time, been sentenced to 30 years' imprisonment. Atthe conclusion of the resentencing hearing, the circuit court,relying upon the defendant's conviction in the Lake County Case,sentenced him to an extended term of 40 years' imprisonment to runconcurrently with the 30-year sentence that had been imposed in theLake County Case. The defendant did not appeal from theresentencing.

On July 19, 2001, the defendant filed a petition pursuant toSection 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(West 2000)) styled as an "Emergency Petition For Relief From FinalJudgment and Correction of Mittimus." In that petition, herequested that the court declare that portion of his sentence inexcess of 30 years to be void and enter a corrected mittimusimposing a sentence of 30 years. On August 7, 2001, the Statefiled a motion to dismiss the petition, arguing that the defendant's sentence was not void and that his petition was untimely. The trial court granted the State's motion to dismiss on August 13,2001. Thereafter, the defendant instituted this appeal.

Before addressing the substantive issues raised by thedefendant, we will comment briefly on the State's argument that thedefendant's petition was moot and, therefore, properly dismissed.

The State asserts that the defendant was released from thecustody of the Illinois Department of Corrections on January 7,2000, after having served 20 years of the 40-year sentence imposedin the instant case. It argues that, as the defendant hascompleted serving his sentence, any claim regarding the proprietyof that sentence is moot.

A question is moot when no actual controversy exists or whereevents occur which render it impossible for the court to granteffectual relief. People v. Lynn, 102 Ill. 2d 267, 272, 464 N.E.2d1031 (1984). "[W]here the only relief sought is to vacate asentence, the question of the validity of its imposition becomesmoot when the sentence has been served." People v. S.L.C., aMinor, 115 Ill. 2d 33, 39, 503 N.E.2d 228 (1986); see also Peoplev. Murrell, 60 Ill. 2d 287, 294, 326 N.E.2d 762 (1975).

The defendant admits that he has completed the 40-year term ofimprisonment imposed upon him by serving 20 years in prison. Nevertheless, he argues that his petition is not moot as he continues to be detained pursuant to a petition for commitment filedunder the Sexually Violent Persons Commitment Act (Commitment Act)(725 ILCS 207/1 et seq. (West 1998)). The defendant contends thatif he had been sentenced to the maximum of 30 years imprisonment asa Class X offender, and not to an extended term of 40 years, hewould have been released from prison no later than April 4, 1995,more than two years prior to the effective date of the CommitmentAct and would not, therefore, be subject to continued detentionpursuant to its terms. However, we need not determine the merit ofthe defendant's argument in this regard in order to find that hispetition is not moot.

At all times relevant to this case, the Unified Code ofCorrections provided that a Class X offender, such as the defendant, was subject to a three year term of mandatory supervisedrelease in addition to the term of imprisonment to which he wassentenced. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(d) (now 730ILCS 5/5-8-1(d) (West 2000)). Nothing in the record before ussuggests that the defendant has ever been discharged from thatperiod of mandatory supervised release. Consequently, it appearsthat, when he filed his petition in this matter on July 19, 2001,the defendant was still subject to a period of mandatory supervisedrelease and had not, therefore, served his sentence as the Statecontends. See People v. Correa, 108 Ill. 2d 541, 546-47, 485N.E.2d 307 (1985). For this reason, we find the cases cited by theState in support of its mootness argument to be distinguishable. As a consequence, we decline to affirm the dismissal of thedefendant's petition on the grounds of mootness and will addressthe propriety of the circuit court's order on the merits.

In urging reversal of the order dismissing his petition, thedefendant argues that the extended term to which he was sentencedon remand was not authorized by statute and, therefore, the excessportion of the sentence above the statutory maximum of 30 yearsimprisonment for a Class X offense is void (see People v. Pittman,316 Ill. App. 3d 245, 253, 736 N.E.2d 662 (2000)), and subject toattack at any time, either directly or collaterally (People v.Wade, 116 Ill. 2d 1, 5, 506 N.E.2d 954 (1987)). Simply put, thedefendant contends that, at the time he was resentenced, the trialcourt was not authorized by statute to impose an extended-termsentence based upon a conviction which was not in existence at thetime of his original sentencing. The State argues that the plainlanguage of the statute supports the trial court's imposition of anextended term on resentencing. We agree with the State.

The statute in effect both at the time the defendant wasoriginally sentenced and at the time of his resentencing providedthat, "[w]hen a defendant is convicted of a felony, after havingbeen previously convicted in Illinois of the same or greater classfelony, within 10 years, excluding time spent in custody, and suchcharges are separately brought and tried and arise out of differentseries of acts" (emphasis added) (Ill. Rev. Stat. 1979, ch. 38,par. 1005-5-3.2(b)(1)), the defendant may be sentenced to anextended term. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a). Atthe pertinent time, section 1005-1-5 of the Unified Code of Corrections defined the term "conviction" as follows:

"a judgment of conviction or sentence entered upon a pleaof guilty or upon a verdict or finding of guilty of anoffense, rendered by a legally constituted jury or by acourt of competent jurisdiction authorized to try thecase without a jury." Ill. Rev. Stat. 1979, ch. 38, par.1005-1-5.

In People v. Robinson, 89 Ill. 2d 469, 477, 433 N.E.2d 674(1982), our supreme court held that the date of a conviction is thedate of the entry of a sentencing order. When this court vacatedthe defendant's original sentence, that sentence no longer existed. It was not until January 6, 1983, that a final sentence waspronounced upon the defendant in this case. Consequently, January6, 1983, is the date of the defendant's conviction in this case(see People v. Lemons, 191 Ill. 2d 155, 159-60, 729 N.E.2d 489(2000)), and it is as of that date that his eligibility for theimposition of an extended-term sentence must be determined.

It is undisputed that, by January 6, 1983, the defendant hadbeen "previously convicted" of rape in the Lake County Case. Hewas, therefore, eligible for the imposition of an extended-termsentence. We conclude that the 40-year extended term sentenceimposed upon the defendant was authorized by statute and is notvoid as he argues.

Having determined that the defendant's extended-term sentenceis not void, we will address the State's argument that the petitionhe filed pursuant to section 2-1401 of the Code of Civil Procedureon July 19, 2001, was untimely.

Section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)) provides a statutory procedure for relief fromfinal orders and judgments after 30 days from their entry. Theremedial powers of this statute extend to criminal cases. Peoplev. Haynes, 192 Ill. 2d 437, 460-61, 737 N.E.2d 169 (2000). However, a petition seeking relief under this statute "must befiled not later than 2 years after the entry of the order orjudgment" from which relief is sought, except in certaincircumstances not applicable to this case. 735 ILCS 5/2-1401(c)(West 2000).

The defendant's extended-term sentence was imposed on January6, 1983. He filed his section 2-1401 petition on July 19, 2001. The petition was untimely and, therefore, properly dismissed by thetrial court.

For the reasons stated, the order of the circuit courtdismissing the defendant's petition is affirmed.

Affirmed.

HARTMAN and KARNEZIS, JJ., concur.